The plaintiff agreed with W, his creditor, that the latter might drive the plaintiff's horse to Y's stable, where it was to remain in Y's keeping until the plaintiff should pay W the amount of an overdue account. W drove the horse to Y, but fraudulently stated to him that he, W, had taken the horse in payment for a debt, and directed Y to sell it for what he thought it was worth. The following day Y sold the horse to the defendant who bought it in good faith and for value. Held that upon these facts the trial court was justified in refusing to find that there was an executed contract of pledge. The trial court reached the conclusion, upon the foregoing facts, that the title to the horse was in the plaintiff and that he had the right of immediate possession. Held that this conclusion, whether treated as one of law or fact, was manifestly correct. Where no fraud and no misleading acts upon the part of the owner of property are shown, his right to its immediate possession, as against a bona fide purchaser from a mere possessor, is well settled. A defendant in replevin who pleads the general issue but files no disclaimer to the property, is estopped from contesting the detention alleged, and the plaintiff is not obliged to prove it. The fact that the owner of property, which was sold without authority by a third person, does not demand it from the bona fide purchaser, nor inform him of his claim as owner, nor commence an action of replevin, until nine weeks after he first learned of the sale, is not, as matter of law, conclusive evidence of a ratification of the sale. It is not error for the trial court in its judgment to drop the name of a person who, months after the commencement of the action, merely consented to become a defendant but was not made such by any action of the court. A memorandum directing judgment to be entered may be amended and the judgment drawn up in accordance with the amended memorandum.
HAMERSLEY, J.
The defendant's argument is based upon the assumption that the trial court has found that the horse was delivered in pledge to The Bernheim Brothers. The court did not so find; and the discussion in respect to the lien of a pledge, the necessity of a tender to The Bernheim Brothers before the plaintiff could take back his property pledged, and the subrogation of the defendant to the rights of the original pledgee, is irrelevant. The conclusion of the court in not finding a pledge may be fairly regarded as consistent with the facts found, notwithstanding the annoying and unnecessary want of clearness in the statement of these facts. Whatever the curious transaction found by the court may mean, it does not mean an executed contract of pledge. There may have been an agreement between the plaintiff and The Bernheim Brothers in respect to a future pledge, but that agreement was not carried out; it required the assent of Yale, and the contract of pledge was never made. It is not an unreasonable inference that the plaintiff did not surrender to Watson his possession of the horse, but that in driving the horse to Yale's hotel Watson acted as the plaintiff's servant or agent, with instruction to arrange with Yale some sort of a three-sided contract of pledge. In view of Watson's conduct, the legal effect of carrying out those instructions becomes immaterial. In fact the horse remained in the full possession of the plaintiff, certainly until Watson, fraudulently and without any authority, treated the horse as his own property, or the property of The Bernheim Brothers, and delivered it to Yale with directions to sell it. These considerations are sufficient to show that the refusal of the trial court to find the fact of an executed contract of pledge is not inconsistent with the facts actually found. Treating the appeal (as possibly for the purposes of this case it should be treated) as correctly assigning such refusal for error, we think the exception is not well taken.
The conclusion of the trial court form the facts as found, that the plaintiff did and the defendant did not own the horse, and that the plaintiff was entitled to its immediate possession, is, as a conclusion of fact, plainly lawful and final. We do not understand this to be controverted, except on the theory that the fact of a pledge has been or should have been found. In so far as it can be treated as a conclusion of law, its freedom from error is equally apparent. The right of the owner of property to its immediate possession, as against a bona fide purchaser from a mere possessor, where no fraud and no misleading acts on the part of the owner are shown, is well settled. Baldwin v. Porter, 12 Conn. 473, 482, 483; Forbes v. Marsh, 15 id. 384, 397; Hart v. Carpenter, 24 id. 427, 430; Romeo v. Martucci, 72 id. 504, 509.
The necessity of a demand upon the defendant by the plaintiff before the service of the writ of replevin, is a question not in issue. The defendant pleaded the general issue, and did not file a disclaimer of all right to the property. He is therefore estopped from contesting the fact of a detention, and the plaintiff is not obliged to prove it. General Statutes, § 1330; McNamara v. Lyon, 69 Conn. 447, 452.
The ruling as to ratification is correct. The facts found do not necessarily exclude any reasonable conclusion except the fact of ratification.
The other rulings, in the view we have taken of the case, do not affect the judgment.
It appears that after the action had been pending in court some six months, The Bernheim Brothers filed with the clerk of the court a paper to the effect that it consented to become a party defendant, and to this all the other parties consented. No action was then taken by the court. In the judgment it is ordered that The Bernheim Brothers be dropped from the action. We see no error in this.
It also appears that this case was tried during the January term, 1901, but not then decided. During the next term, on February 13th, the judge filed with the clerk a memorandum for entering up judgment, and seven days later amended the memorandum, and the judgment was then drawn up in accordance with the amended memorandum. There is no error in this.